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Judgment
D.V. Shylendra Kumar, J.—We find more misuse and abuse of the constitutional remedy of issue of a writ of habeas corpus than proper use of this very effective remedy provided to the citizens of the country under our Constitution, in situations where any citizen or any person is kept in illegal custody by any other person whether by using the State force or private individuals.
Every situation of a missing person is sought to be converted into a writ petition for issue of a writ of habeas corpus. Family feuds are brought before the court in the form of a petition for issue of a writ of habeas corpus. While the efficiency level of the investigating agencies, their sincerity and even many a times their bonafides may not be up to the desired levels or expected levels, it does not mean that every situation of any deficiency or lacking in investigating a crime can be converted into a subject matter for issue of a writ of habeas corpus.
The present writ petition does not disclose better picture than what we have described above. The grandmother whose granddaughter by name Smt. Saroja married to the third respondent is complained to be missing from 10.2.2011. Said Smt. Saroja after having a brief sojourn in petitioners house, went back to her matrimonial house on 10.2.2011 and thereafter for many days as the petitioner could not ascertain the whereabouts of Saroja who was neither in the house nor in any other place to the knowledge of the petitioner where she could have gone or be staying etc.
In this regard, petitioner had given a missing complaint on 4.3.2011 with Byappanahalli Police and the Police not having made any head way, has approached this court seeking for the following relief:
WHEREFORE, the petitioner most humbly prays that this Hon''ble Court may be pleased to issue a writ of habeas corpus against the respondents and direct the respondents No. 1 to 2 to produce the body of the Smt. Saroja before this. Hon''ble Court, in the interest of justice and equity
On the very first day, when this matter had come up before the court i.e., on 21.07.2011, there was no representation for the petitioner learned SPP took notice for the State on 1.8.2011 and the only further progress as noticed by this court in terms of the order dated 21.9.2011 was that the Inspector of Police, Byappanahalli Police Station and also the third respondent who were present before the court; that not only the Police but also the third respondent - husband of the missing person were making efforts to trace missing person and the learned SPP had submitted that the missing person was also mentally ill etc after praying for time on several occasions to place the status report and ultimately the status report was placed before this court on 9.11.2011 which was noticed as per the following order passed on 9.11.2011:
DVSKJ & CRKSJ:
09.11:2011
The status report by way of affidavit sworn to by Mr. Kishore Bharani working as Police Inspector, Byappanahalli Police Station. Bangalore, is placed before the court and it only states that the efforts on the part of the Police has not yielded any frutis so far in tracing the missing person and the respondents have continued their efforts and give an undertaking to the court that they will put in their best efforts in tracing the missing woman, but at the same time a discordant note, that as the habeas corpus petition does not contain any allegation of illegal detention of the missing woman by any person, the writ petition is not maintainable and deserves to be dismissed etc.
We have heard Mr. Lakshmikanth, learned counsel for the petitioner and Mr. Chandramouli, learned SPP appearing for the respondents.
We do not appreciate the blow hot and cold attitude of the respondents in saying that they have put in efforts, but as it has so far not yielded any result, they will continue their efforts in a concerted way and would produce result, but at the same time pray for dismissal of the writ, petition on the premise that the petition is not tenable etc.
The status report appears to be more a routine type of report as in paragraph-8 of the affidavit it is indicated that many Constables had been deputed to make inquiries about the missing person not only through out the Bangalore City and Bangalore Rural Police Stations, but also Chickmaglur, Hoskote, Chintamani, Kaiwara, Chickballapur, Kolar, KGF Police Station limits etc., but with no results.
What strikes us is that the third respondent -husband of the missing person has not lodged any written complaint to the Police about his wife having gone missing and the third respondent who is present before the court has also stated that his wife used to go missing only for the purpose of visiting her close relatives such as mother, sisters, paternal Uncle living in Shanbhoganahalli in Ramanagar Taluk and used to be frequently away from their house for short intervals, but states on this occasion that she has been missing on and after the last visit to his house on 11.2.2011 and he is also unable to trace her etc.
Be that as it may, as learned SPP seeks some more time to enable the respondents to continue their efforts and place the factual position before this court, we grant ten more days time and with a caution to the respondents that their efforts should be focussed and meaningful and not just going about ail over the place and to make a written status report before the court.
List this matter on 21.11.2011. Developments by then to be placed before this court by the respondents.
Subsequent order passed by this court on 21.11.2011 reads as under:
DVSKJ & CRKSJ:
21st November 2011
Inspite of this Court passing the order dated 9.11.2011, not appreciating the stand of the respondent/State and its police officers that they can not have an inconsistent response with regard to the maintainability of the petition and also at the same time seek for further time on the premise that further concerted efforts will be made to trace the missing person etc. the status report placed before the Court today is not any different from the earlier reports except that it indicates the investigating officer has been changed from the Inspector of Police to an Assistant Commissioner, by name N. Narasimhaiah who has sworn to an affidavit now placed before the Court in the form of the status report and the affidavit suggests that after the deponent has taken over the investigation, there is some progress in the case.
Mr. Chandramouli, learned State Pubic Prosecutor appearing for the respondent/State submits that given two more weeks time, there will be positive, definite progress and that will be placed before the Court.
Though we have found such requests coming at regular intervals not only in this case but in other cases also, having regard to the fact that a writ of habeas corpus is sought for and considering that freedom and liberty of a citizen is at peril this Court is inclined to grant two more week''s time to the respondent.
List this matter after two weeks i.e., on 7th December 2011.
Sri. Chandramouli, learned SPP submits that the Police have been putting in all efforts to trace the missing person; that more than forty persons have been enquired into so far and the third respondent has also been questioned, but the Police have not been able to get any information about the whereabouts of the missing person.
While further investigation can be continued in respect of the missing complaint, the complainant has not made any specific allegation against the third respondent and therefore the complaint remains as one of the missing person etc.
However, Sri. Kemparaju, learned counsel for the petitioner submits that the third respondent who had married the granddaughter of the petitioner and who had also two issues from the marriage has developed illicit intimacy with another lady belonging to different community and has been living with her and therefore the petitioner strongly suspects that the third respondent must be the cause for the disappearance of the granddaughter of the petitioner etc.
A writ of habeas corpus can be issued if a person is in illegal custody of any other named person and writ can be issued to that person directing the person to produce the detained person in physical form before the court to ascertain as to the correctness or otherwise of the allegation of the illegal custody.
The version of the respondent - State through their Police is that they have not been able to get any information or locate the missing person being found in illegal custody either at the place of the residence of the third respondent or in any other place.
While Sri. Kemparaju, learned counsel for the petitioner submits that the petitioner and even the counsel are really not satisfied with the manner of investigation by the Police, even a situation of this nature cannot be one within the domain of a petition for issue of a writ of habeas corpus. A writ of habeas corpus cannot be issued in vague and uncertain situations on mere suspicion or hunch of the person coming before the court.
While it is open to the petitioner to pursue her efforts in accordance with law, particularly, if the third respondent is involved in any crime vis-a-vis the missing person, this petition cannot be kept on board.
This writ petition is dismissed.